Anti-abortion activists ask justices to overrule ban on expressive activity outside clinics

Petitions of the week

The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In its 2000 decision in Hill v. Colorado, the Supreme Court upheld a Colorado law enacted to prevent groups or individuals who oppose abortion from protesting, handing out materials, or speaking to patients, doctors, or staff outside of medical facilities that offer the procedure. Two years ago, when the court overruled the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito wrote in his majority opinion that Hill has “distorted” the First Amendment. This week, we highlight petitions that ask the court to consider, among other things, whether to overrule Hill.

Abortion opponents have brought the question to the court in challenges to two cities’ bans on activism outside of clinics and hospitals.

The city of Englewood, New Jersey, passed an ordinance in 2014 that bars expressive activity of any sort in an eight-foot buffer zone outside entrances or driveways of all health care facilities. The city enacted the ordinance in response to disruptive protests outside a downtown abortion clinic.

In 2022, the Illinois city of Carbondale adopted its own ordinance. Like Englewood, Carbondale chose eight feet as the important metric. But under its regulation, the buffer zones center not on entrances but on people, barring activists from standing closer than eight feet from anyone entering or leaving a medical facility within 100 feet of the building. Carbondale’s city council enacted its ordinance in direct response to Dobbs.

The eight-foot distance in both ordinances is no coincidence. Anti-abortion groups say their members need to be able to get close enough to patients to make eye contact while they advocate against abortion. The Colorado law upheld by the court in Hill created floating, eight-foot buffer zones that shield those walking in and out of health care facilities from such expressive activity. Indeed, Carbondale’s ordinance is essentially — and as the city council’s remarks around its enactment suggest, intentionally — a carbon copy of Colorado’s law.

Anti-abortion activists went to court to challenge both city’s ordinances. In Englewood, local resident Jeryl Turco has been litigating against her city’s regulation for nearly a decade, arguing that it frustrates her ability to share her religious opposition to abortion with patients entering the downtown abortion clinic. And after Carbondale enacted its ordinance, Missouri-based nonprofit Coalition Life asked a federal district court in Illinois to suspend it, contending that the city had made it nearly impossible for its members to travel to the city and speak to people outside its two largest abortion clinics, both located within 100 feet of busy streets and highways.

In contrast to the unruly anti-abortion demonstrations that inspired the Englewood law, both Turco and the members of Coalition Life describe their efforts as “sidewalk counseling,” a practice focused on individual, one-on-one conversation, rather than large-scale picketing or protest.

Federal district courts ultimately rebuffed the challenges to both cities’ ordinances. And the U.S. Courts of Appeals for the 3rd and 7th Circuits — which cover New Jersey and Illinois, respectively — affirmed those rulings.

In Turco v. City of Englewood, New Jersey, and Coalition Life v. City of Carbondale, Illinois, Turco and Coalition Life ask the justices to overrule their prior decision in Hill. Characterizing that ruling as a dead letter, they emphasize the court’s repeated efforts to cabin Hill since it was issued over 20 years ago – including both a 2014 decision striking down a Massachusetts law that created 35-foot buffer zones outside medical facilities, and the passage in Dobbs that called Hill into question. The time has come, the challengers argue, for the justices to jettison Hill and make clear that ordinances like those in Englewood and Carbondale are unconstitutional.

A list of this week’s featured petitions is below:

Turco v. City of Englewood, New Jersey
23-1189
Issues: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the Supreme Court should overrule Hill v. Colorado.

United States v. Brewbaker
23-1365
Issue: Whether the existence of a vertical relationship between competing bidders precluded the application of Section 1 of the Sherman Act’s established per se rule against horizontal bid-rigging to respondent’s conduct.

Coalition Life v. City of Carbondale, Illinois
24-57
Issue: Whether the Supreme Court should overrule Hill v. Colorado.

Meadows v. Georgia
24-97
Issue: Whether the right to remove an action against “any officer … for or relating to any act under color of such office,” 28 U.S.C. §1442(a)(1), evaporates when the officer leaves federal office.

Miller v. MBC Development, LP
24-246
Issue: Whether the Federal Arbitration Act preempts state statutes providing that a certain type of claim is exclusively subject to judicial review, when the parties to the dispute have expressly agreed to arbitrate all such claims between them.